Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1883-03-29
COURT DECISIONS.
GALVESTON rrnx--i 1891


county. Opinion by Hurt, J. 4
there II testimony tending t0 establish
a theory within range Of the charge
contained IN the Indictment, the c0iir
should give IN its charge tho law mp
plicable 10 such theory. II does no
follow that because there was evidenc,
Of sufficient force or strength 10 re-
quirc charge upon the theory pre-
scented by such evidence that tn,
court should refuse d new trial, up0f
the insufiiciency Of the evidence. i
the evidence be Of such Ine8ger and
doubtful character as that the cour
would not hesitate 10 vet aside the yer
dict, 10 would be better not to charg,
the law applicable 10 the theory, and
feebly presented by the evidence. II
charge has been given upon theory
not sufficiently supported by the evil
dcnce ~ warrant a conviction, the
court should grant new trial. These
observations apply "a well 10 theories
Of the prosecution M Of the defense.
The evidence does not support the YER
dict Reversed and reminded.
Flores W.. the state and Bernal W.
the state From Webb county. Opin-
ion by White, ~ j. the court erred
In emitting aud refusing 10 charge
upon the law Of cIrcumHtantlnl evil
dencc. Defendants were not seen TO
steal the horses. When arrested their
crime, " any, was complete, though
II may have been but II short time
after or distance from the place where
the animals were stolen. Being found
Ia the possession Of property No recent
~ stolen Ia but circumstance tend
Ing To- show guilt. They did not con-
fcss the theft or claim the property,
but said they were taking them 10 the
suburbs OF the city. Tie court should
have instructed the jury that though
the failure 10 produce u written con
veynnce was prlIna facia evidence
TINT defendants possession was Illegal,
yet II was not conclusive and might
he rebuttod by competent evidence.
I4O Tex, 90; II o. App, 1885,. Re-
yersed and reipandcd.
Montgomery w. the State From
Tarrant county Opinion 10y White,
L. j. There was no positive evidence
iis to the taking of the horse Defen-
dant did not admit the theft, but
claimed To have purchased II, and IA
Ia the theft Of the horse the evidence
was but circumstantial and the court
erred IN falling to charge upon cir
cumstantiul evidence. No special In
structloD on tllls point was asked, nor
was my bill Of exceptions taken 10
the failure To give II, and the point
was first raised In defendants mo-
tion for n new trial Held, the ques-
ton wns one which could properly
be raised and awaited Of for the
first time on motion for new trial.
Reversed and rpnuuupI
Strosau ct nj. vs. Fidelli ct al From
Galveston county. Opinion by Will
son, j. In cases growing ont of the
non.pcrfornnncc Of contracts, where
there W. no element OF fraud, wilful
negligence or malice, the measure of
damage IN the direct pccuninry loss
suffered by the injured party Future
profits which might have accrued
upon the performance of contract
cannot be allowed In estimating for
the breach of the contract, eXcept
where under the contract labor * to
be performed, from which profit IL to
spring IA the direct result OF work to
lac done mt stipulated price and one
party h prevented from earning such
profit by the wrongful net Of theothcr.
This case does not come within the
exception. Reversed and remanded.
Marles Va. the State From Webb
county. Opinion by Wilson, j. A
slight disregard of the provisions of
articles 6l9 aud Oh would not be auf-
liclent pei pc 10 warrant the setting
aside ~ verdict of conviction. IL IL the
duty of the trial Judge to see that these
provisions are substantially observed
This court Ia the absence of proof IL
the contrary will presume the trinI
Judge has discharged his duty. II u
not shown that the defendant by reh
son of the ruling of the court was com
PEELED to pnss upon tillsman Jurors o.
to accept amy Objectionable Juror or II
any manner suffer Injury by reason o
the over-rulins of the motion to quasi
the venirc. Affirmed.
Lewis W. the state From Fayctt,
county. Opinion by Hurt, j. |. III,
court did not err In overruling defend
ants motion To quaah the venire; tn,
return showed diligence 2. To com
plain OF the action of the court In or
roneously holding " Juror competen
the defendant must have cxhnustc,
his pcrcmptory challenge. 3. Will
the evidence of Holman wax not com
petent yet defendant could not hay,
heun Injured thereby and such IL ~
immnterial error, 1. The objection
TINT, while the examination of wit
ness was progressing, the Judge nh
scented himself from the courtroom
> for few moments, Is not well talson
IA no injury resulted TO appellen
thereby. Other assigned errors ar,
discussed but no error Is found ant
the Judgment h affirmed
Bales VA the Atntp - Erom Stpnhpn
county. Opinion by White, j i, Tn
indictment herein charged dcfendnn
with forgery and for uttering or pass
ing forged instrument, knowing II &
be forged, Held, there Is no inconslst
cnoy In charging forgery and uttorlnv
n forged instrument IN separate court
I'm one indictment, because In thei
nature the oilenses are very similar Ii
character. though differing In the pun
ishment affixed. Although the hrs
count was abandoned, yet Il was no
stricken out on motion 10 Quash, an,
therefore the objection that the secon,
count can only he made sufficient b,
reference to the first count, ~ not ten
able, Affirmed.
Clark ct nj vs.. Murrah ct al Iron
Travis county. Opinion by Commits
sloner Watts adopted, Art. SaS6, Pas
Dig, not being Incorporated In th
Revised Statutes IL stands repealed
and now when an injunction IL die
solved Judgment cannot he rcif,lhfe,
against the principal and the suretie