Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1884-07-04
THE GAZETTE: FORT WORTH TEXAS FRIDAY, JULY 1.

the appellant was convicted Of embez.
cling was intact the property Of Mar.
tin, the alleged owner. 1t is. to gay
the least, doubtful IL defendant's claim
to 1t was not honestly and legally
made. But whether this be so or NOT,
II was incumbent upon the state
to prove rs charged, that 1t
was the property OF Martin,
aud this the state has
failed to establish with that reason
able degree of certainty that the court
is enabled to cay that this most i'm
portant fact Is evident aud made
manifest by the record. The evidence
must show that, rs charged, the prop
ertv belonged TO Martin. Reversed
and remanded. White, p. ].
Rutherford Va. the State, from Har-
ris county. Where In the trial OF a
person charged with an offense against
the laws Of this state, there Is evidence
tending to establish n particular
defense, It Is the duty of the court to
charge the law OF such defense, regard
less OF Its own opinion as to whether
the evidence Is of itself sufficient to
establish such defense. Whether 1t is
or Is not lisa question which rests exclu-
sively with the jury--to the jury alone
Is committed the duty Of passing upon
the credibility of witnesses aud the
weight of testimony. The duty of the
trial court upon such question is linn
tied To proper charge upon the de-
tense indicated by the evidence. Re-
versed and remanded. Wilson, j.
Edwards ct al. vs.. Ezell 4 Suggs,
from Milan county. This suit was
upon promissory note. The petition
alleged that the appellees were part
ners. doing general business under
the firm name of Il. 4 s.; that q. w.
r., who signed tue above note, was
their agent and general manager, with
full authority, and rs such made the
purchase for which the note was
given, and that appellants ratified
the contract 10y sundry payments
upon the same. Exception was that
note sued on appeared to be the note of
q. w. r., and that no one else could be
bound by the said note; that no evil
dence could be legally admitted to con.
tradict or change the nature of the OBJ
legation incurred by G. w. r. by vir-
tue of his making and executing said
note. Held, that the court erred in
sustaining said demurrer. See Story
on Agency, 7 ed, sec. 100 a. Held,
tition could be proved by parol testi-
mony. Reversed and remanded.
Wilson, j.
Gillespie VS.. the State, from Cole.
man county. The Indictment and
or lost before trial and upon motion
the court permitted their substitution,
by proper order regularly entered. No
N nf fl.ap. l,,c
the defendant, and when his case was
called to proceed upon the substituted
papers he excepted. Our code makes
no provision for the substitution of lost
papers other than lost indictments or
information, and providing for the sub.
stitutiOn of these makes no provision
for notice. But in this case other and
essential papers were substituted. II
such substitutions were authorized, IL
was only under provisions of art.
LAG, Of II. S., or In the exercise of ju-
eicial discretion, for exercise of which
rules see Texas Law Reporter, 6i1.
If substituted under the statute, three
days notice was necessary; If
under the exercise of judicial
discretion, then II Is held uron general
principles that notice should have been
given. Query: Can an indictment
be substituted at all before trial? See
Schulz vs.. the State, . Texas
Law Reporter No. IL, GAL.
The better practice would he
to have the grand jury prefera new in
dictment. Reversed and remanded.
Willson,J.
Killman vs. the State, from Coleman
county. The attitude of this case is
Identical with that of Gillespie VS.. the
State, supra. The substitution of the
Indictment and other essential papers
In the case was made without notice
to the appellant, and exceptions were
taken when 1t was proposed
to proceed with the trial on substituted
papers. The opinion in the Gillespie
case ia adapted and applied TO this, and
the same suggestion as to the proper
course to be pursued with reference to
the indictment Is made in this case.
Reversed and remanded. Wilson j.