Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1884-01-30
THE HIGH COURTS.
Syllabus of Opinions Rendered at the
Galveston Term, 1854.
Special TO the Gazette.
COURT OF APPEALS.

fayette HIS was q SUI. w
apainst appe|lant and George Baum
bach for damages. The judgment was
against appellant for q specified
amount, and as to George Baumbach,
that the plaintiff recover nothing, but
that George Baunbach go hence with.
out day. Appellant appealed to the
| county court with George Baumbach
and one X. as sureties. The appeal
was dismissed on the ground that
George Baumbach, being party to
the suit, was an incompetent surety.
Held, error; that the Judgment in
Justices court severed George Baum-
bach,s connection with the case and
he was competent 40 a surety, Re-
versed and remanded. Hurt, J.
Houston d Texas Central railway vs..
Engelke, from Washington county
casioned by delay in delivering cotton
shipped by appellee TO Philadelphia.
The answer set up that the delay in
delivery was occasioned by the act of
God; that the cotton was stopped EN-
route by an unprecedented flood, dur
| ing which time the price of cptton de-
clined. Tho evidence failed to sustain
the allegation, inasmuch rs the flood
occurred after the lapse of reasonable
time. Another objection was that
there was variance in mark actually
on the cotton shipped, and the mark
us given by the witness who took down
the weight of the bales of cotton at the
time they We're shipped. The objec-
tion was urged TO the memoranda.
Held, that primarily the memoranda
was admissible, and that the variance
is not show to be material. Objection
that another and not Engelke was the
owner of the cotton isnot sustained by
the record. The cotton was consigned
| by Engelke, and so shown by the bill
OF lading. Affirmed Wilson, j.
Woodhouse vs. Trevino, from Cam
eron county.--An answer having been
filed to the suit on garnishment and
last pending hearing, the trial court
upon hearing the cause, and finding
no answer on file, rendered Judgment
against the garnishee by default. Sub
sequently and during the same term
of the court ascertaining them an an
swer had in fact been filed, and was
found, the court set aside the judg-
ment against the garnishee. There
upon the plaintiff came into court and
controverted the answer, and
upon hearing Judgment was rem
dered in favor of the garnishee.
The error assigned is, that
the court erred In setting aside the
Judgment by default. Held, not er-
ror; that it was not only within the
power of, but was the duly of, the court
TO correct such mistake and set aside
the Judgment by default. Affirmed,
| Wilson, Judge.
Frank Smith vs. the State, from
Washington county.--It lisa well set
tied principle of law that when
tl....a ,.t Of t,n Il u
the defendant ut the time of the kill
ing, taken in consideration with all the
facts and circumstances, is of such
| character as is calculated to create in
the mind of the defendant reasonable
apprehension of death or serious bodi-
ly harm the defendant is authorized
TO kill, whether the danger be real or
apparent. The facts in this case es-
tablsh clear case of self-defense. BY
statute, ii is provided that insulting
language toward n female relation is a
cause adequate to reduce the homicide
to manslaughter,and the charge should
so instruct the jury. In the absence of
exception TO such omission, or request
ed charge, or assignment in motion for
new trial, such error is not revisable.
The evidence does not support the YER
dict. Reversed and remanded. Hurt
Judge.
Barbarosa VS.. State, from Webb
county.-The prosecution was for as
sau 1t 10 murder, and the evidence was
SUI fiicient in all respects to sustain the
indictment. Under such state of
case, the court charged in substance
that In order To convict of assault with
intent to murder, it must appear that
had death resulted, the ofianse would
have been murder. The objection
urged was that the charge presented
merely an abstract proposition of law.
Held, that the objection is unteDable;
that while II has been held that kill
ing may occur without intent TO MUIR
der, an assault 10 murder cannot occur
without an intent to murder. The ev-
idence is sufficient upon the question
of intent, and the Judgment is af-
firmed. Affirmed. Hurt, j.
L. A. Mcdonald VS.. the State, from
Madison county.-A prerequisite to an
appeal in criminal cases less than can
ifal, is that, after conviction, SEN
tence be passed upon the defend
ant. Such Is not the rule where the
capital punishment is inflicted. In
cases less than capital, the want of sem
tence, and the record must show the
sentence) there can be no final judg-
ment., In such state OF case the appeal
must be dismissed. Appeal dismissed.
Hurt, j.
Ruston VS.. the State from Dewitt
county.-The defendant i'm this case
was awarded the ten days after adj
journment of court In which to file his
statement of facts, under the statute
regulating such practice. One day be.
fore the expiration Of the time adopted
the appellants counsel presented to
the states attorney statement Of
facts made up by them, but the states
attorney declined to take any action in
relation thereto. On the same day the
appellants counsel presented the state
ment to the county Judge who tried
the case, and he likewise declined to
act upon 1t, or TO certify any statement
of facts, and the record comes up with
no authenticated statement of facts,
but with u showing to the above effect.
Held, that upon this showing, the APP
pellant without fault has been de-
prived OF vital right guaranteed him
by the law, and that the county Judge /.
not having observed the requirement
of the statute In such cases, the judg-
ment is reversed and remanded. Re-
versed and remanded. Wilson,
Judge.
Ruston vs.. the State. from Medina
county. reciting the evil
dence, or commenting upon 1t, It IL
sufficient TO say that bail should have