The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1880-03-19

az Decisions Of the court Of Appeals
Galveston Term, 1850,

lReporal for tho Galveston News by q 4,
Eaton, OF Tho G.lysst ~ naT'
Scurry Foster Vi, State, Appeal from
Austin, Opinion by White, j, +, There
was conflict in tho evidence rs TO whether
deceased, ut tho time no was shot, was in fact
armed with a knife which no held open In
his hand, Tho deputy sheriff who arrested
deiendent testified in part; "When thepstol
fred saw tho flash, saw the man whom the
fash camo from, aud Immediately caught
hold Of hlm-not quarter Of a minute after"
Defendants counsel then proposed to prove
by this witness That just At the moment no
placed his hand on defendant the lat
ter romrakedi 81 would shoot amy nun
who tries " cut my throah' which
was objected to by the prosecution
and tho objection sustained and the evil
aence excluded. The exclusion Of this evil
denco was error, by all the approved au'
thorItcs, coming Ms 1t did, spontaneously NJ
the very time Of tho net, aud before time for
elaboration OF time " manufacture tho
story, defendants declarations werQres geslie
a Besides beng res gestw, the OK
cluled testimony was material and import
mt both ~ tending to show why the defend
ant shot deceased md as corroboratlyo Of the
other witnesses for defendant who testified
that Umland had knife In his hand and was
advancing with II upon defendant NJ tue time
the fatal shot was fired A number Of oblec-
lions nre urged TO the charge of the court
several Of which In our opinion are well
taken, and which mc reviewed ut length by
the court Reversed and remmded.
Mercer Smith VS., State. Appeal from Hill.
Opinion by White, p, j. In our opinion this
case must be reversed, because the court
failed TO submit the law applicable TO the
vital Issues necessarily raised Dy the evidence
elected after review ofthe facts The opn-
ion reads: The charge failed to draw tho
distinction which the law makes between
cases of combination and conspiracy to do mn
unlawful act, and the liability of one and all,
for tho acts and deeds of ALL where the com
mon purpose might be to do an act not in
itself unlawful, and in the execution ofwhich,
one Of the parties engaged, committed
felony. In the case nj bar there would be
marked distinction as to the liability Of the
parties, when tested by what was the common
purpose which united together at the time
Purtoll engaged in the shooting which result
cd in his homicide. If the common pur-
pose WAS to commit an unlawful act, ~ for
instance, burglary, which would be evil
denced by the fact that they broke down the
door and forcibly entered the house at night
or that they broke down the door and forci-
bly entered the house 10 commit rape, (P.P.,
art. 7Ol), then, uuanifcstly tue original pur-
pose and common design being to commit
felony any act done by either one of the
parties, whilst engaged in the unlawful act
would be imputed to, and attach Its crimi-
nality to- the other, and make each liable
Jointly. for Whatever either may have done in
the general purview of the criminal design
duringthe execution of the original unlawful
ENTERPRISE. II is the lawEulness or
criminalty of the purpose, and common de-
sign, which gives scope and character
to acts committed in connection
with its perpetration, Fost S54,2 Hawk P.
c, ch 30, sec Q, % Arch, Or Pr Pl, Is ed,)
PSI note Whor on Hem, sec 2O2;
ID, sec $685. Ruloif vs. People, 10 N Y, 2l3;
Green VS. State, 10 Mo, $685. / Bish Or l.,
a cd( sec 4S5 Hamsah VS. People, So Ill, 43.l
Nor is it necessary that the common guilty
purposA of resisting to the death any person
who should endeavor TO apprehend them,
must have been found when tho parties went
out with the common design Of committing
the unlawful act to render all principals in
murder BY one of them perp"trated whilst
making such resistance. RuloH VS. People,
45N Y, 2l3; State VS. Pcsh, 7 Iowa, $50;
Moody vs. State 6 Cold, Tenn 299.]
Reversed and remsnded.
FIR Dean VS. L Reinecke ct ais. Appeal
from Galveston. Opinion by Clark j. Other
Questions are presented in this appeal beside
those discussed and decided in the case of
Dean VS. Reinecke, No. S02, but as that case
is necessarily decisive Of this, in so far as the
main parpose OF the suit is concerned, 1t is
not deemed necessary to pass upon other
questions presented 1t is insisted by appel
liant that after subsequent parties IN interest
had. by invitation of the original plaintiffs,
and with the sanction Of tie court, come in
and made themselves parties plaintlil, that
the amount in controversy thereupon was
increased beyond one thousand dollars, and
the jurisdiction of the county court was
thereby extinguished. Glrardin VS. Dean,
30 Texas, 243. While under the authority
Of that CASE this may seem to be so,stil as u Q
determinations of the question cannot in any
event affect the action OF the court, or the
stotu. ofthe parties we decline to express
any deGuite opinion upon the question until
case is presented necessary involving its So
luton leaving ourselves free to take such ac-
ton then as may in our Judgment be warrant
edby the law and the nature OF the particular
case then before us. Reversed and dismissed.
F. r. Dean vs. John Roemer. Appeal
from Galveston. Opinion by Clark, }. This
case being similar in all respects to the case
ofDcar vs.. Reinecke, No. SO2, third assign
ment decided at the present term; the opin-
ion in that case will apply to this, and upon
its authority the judgment is reversed and the
case dismissed.