Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1884-02-07
THE HIGH COURTS.
syllabus of Opinions Rendered al tue
Galveston Term, 1854.
HtpofIcd Tor Tue uAEcIIV'
rnI.Rr nE AHrEAlS.

]
l. OF certain cattle. The facts in brie
e were, that having executed the ut'ii
and received the cattle, the deienuah
below drove Them to Laredo, wher
they were seized under the revenue
laws as struggled property. The de
:. PENDANT thereupon stopped paymen
). of the draft, notifying the plaintifi o
the seizure of the cattle, and eonse
quent failure of consideration. Hav
ing alleged his cause of action in mar
mony with these facts, and the DEFEND
ants answer setting up nature Oh
}, consideration, the plaintiff hied gen
j eral demurrer 10 the answer, when
was overruled. The demurrer was
e based upon the ground substantially,
that sufficient notice OF the failure oil
consideration was not given to the
plaintiff, and that to constitute suiil-
cient notice, the defendant should
: have alleged not ouly a failure of con-
, sideratioI but declaration of COM
: petent court condemning the cattle rs
; struggled. Held, that the demurrer
was properly overruled, there being no
rule of law requiring defendant 10
resort TO the courts before pleading
failure of consideration in suit upon
contract. Article 1916 of the United
States Revised Statutes cannot I've held
to apply to such remedy. Sustained
by sufficient evidence to show result
ing damages for breach of the contract,
the defendants plea in recon-
ventiou sustains judgment for ac-
tual damages. Affirmed. Wilson j.
Coleman vs.. the State, from McLen-
nan county.--rhe matter of placing
witnesses under, or releasing them
! from, the operation of the rule Is COM
mi,ted directly 10 the discretion OF the
| trial court, and its action VIII there
| fore not be revised by this court except
when it appears atiirmatively that
such discretion was abused. In TINS
case the main error relied upon was
the action of the court in releasing the
deputy sheriff from the rule. Held,
that no error is made apparent from
the record. Ii was objected that the
court erred in charging the jury to dis
regard, and not consider any confess
sions of the defendant as to his guilt.
Held, that the criticism is hypercriti-
cal. Held further, that when the
charge of the court, taken as a whole,
is sufficient, isolated objections will not
be considered. Affirmed. White, p. J.
Clayton, alias Cobb, vs.. the State;
from Bell county.-While rs general
rule it is true that circumstan-
theft case, sufficient to prove
the want of the consent of the owner
to the taking of the property. it is suf- !
iicient when it shows that direct evil |
dence is not accessible. In this case |
the owner was an aged invalid, and it |
was shown that the stolen property |
"a ha inn a inf aIf
Of her son; that the owner was too in
firm to be present on the trial. Held,
that il was not error to permit proof of
want of consent to be made 10y the son.
When the defense in q theft case was
the purchase of the stolen property
from a third person, and there was
evidence tending to establish such de-
Tense, the court should instruct the
jury, in effect, that if they believed
fro Il the evidence that the defendant
did so purchase the stolen property,
whether or not the same had been
stolen by such third person or other !
party, and after the theft they should |
acquit. To constitute theft the taking |
must he fraudulent, and there must be |
a taking. a purchase is not taking.
Reversed and remanded. Wilson, j. |
Short vs.. the State, from Grayson
county.-In the absence of exceptions
To charge of the court, or requested |
charges curing an apparent error,
this court is limited in its investiga-
ton to the consideration of funda-
mental error, or such as in themselves |
were primarily calculated to prejudice |
the rights of the defendant. Upon |
n state of facts which showed |
that the deceased made an attack upon |
defendant with pocket Barlow |
knife, the court in charging upon the
subject of self-defense, confined the
jury in considering the right OF self |
defense to reasonable apprehensions of !
the defendant of death AT the hands of |
the deceased or serious bodily harm. !
Held, error; the facts showing. or |
tending sufficiently to raise the issue. of
a violent attack; the charge should |
have authorized an acquittal if the |
jury believed the evidence sufficient to |
sustain said defense. Reversed and |
remanded. White, z. j.
Ruston Va. the State, from Dewitt |
county.-With respect to the prepare
ton of statements of facts when
counsel fail to agree, the rev sed stat
utes provide AS follows: "If the par
ties do not agree upon such statements
OF facts, or if the judges do not approve
or sign it, the parties may submit
their respective statements to the
Judge, who shall, from his own knowl-
edge, with the aid of such statements
during the term, make out and sign
aud file with the clerk cor
rect statement of the facts
proven on the trial, and
such statement shall constitute part
OF the record" This rule applies as
well to statements of facts authorized
after adjournment. and notwithstand-
ing the states attorney refused to
agree to or to sign the Defendants
statement, 1t was the duty of the court
TO make statement from that of de-
PENDANT. Reversed and remanded.
White, p. j.
Bounds vs.. the State, from Free |
STONE county.-The conviction in this
case was for obstruciing a public road
The substance of the evidence was N
the effect that the appellant himself
prevented the establishment of the
road as public road, and participated
IN laying ii out. There was nothiny
IN the statement of facts or other nro.
c.eedings to show that the court erred
IN refusing TO admit a. evidence a Mat
offered by the defendant for the pur-
pose OF showing variance between the
proof OF the location of the road "a laid
ana the location us alleged in the i'm.
uic.Meht; and consequently upon such
sround there was no error IN overrul.
ing the motion for new trial. Affirmed