Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1884-03-08
o.u,t disastrously to the good people
IsHit N'''- .,,I,,,,, unapu him


cai, an, os;de when it appears that the
,,r,,rnent was calculated to prejudice
~ ,hs dafendant. See Bishops criminal
Wv. .,rocecdinp. for proper exposition of
l,e rIile on the subject. Sections 9I5a,
o-5h Reversed ana remanded.
Hurt, j. c. e.., n,a
.o,,. cminty.-The conviction was for
bnrglary, upon circumstantial evil
dance The charge of the court prop
arlv explained the force of such EVIL
da1ce. and consequently the hndlng
~ the iury. upon such evidence, IL be-
inc snilicient In itself, cannot he re-
Used. That the defendant gave u
raasonable account of his possession OF
The stolen property does not make his
exclamation Der Sc true; nor was the
state hound TO contradict 1T by positive
testimony. The truth or falsity OF the
exclamation may be shown by M
stanIi,l evidence. The truth or falsity
of The explanation, under the evidence,
il for the Jury to decide. SUBDIVISION
. of art. $50 Of the c. &. p. defines the
manner of testing juvenile witnesses,
and in the absence of showing that
The court abused its discretion III pass
ing on such question, this court VIII
moi revise its action. In defining the
name of au oiiense, to allege that III
was committed "at' the county Is
equivalent to alleging that IL was
committed ''in" the county, etc. OBJ
lection to the breaking, rs by force or
fraud, is not sustained by the record.
Affirmed. White, =. j.
Western Union Telegraph Co. VS..
Connolly. from Harris county.-ln an
action to recover damages for breach
of contract, the general rule as to the
measure of damages is that the remu-
ueration to which the plaintiff is re-
strjcled il the amount of injury result
ing, naturally and proXimately, as I'M
mediate consequences of the breach.
Such damages rs do not naturally and
directly result from the breach, are re-
mote and consequential, and cannot be
recovered. For the rule thoroughly
discussed see White Il Wilson's Con.
Rep. see. sol There is not
shown by the evidence 10 have been
any such understanding between
the parties rs to have injured
the plaintiff by the non-delivery of his
telegram beyond the reasonable value
of his time and expenses in going to
and returning from NJ Wherefore,
The court erriug in holding the con
| trary, the Judgment Is reversed and
remauded. Wilson, j.
Mcdonald VS.. the State from Madi-
son county.-1'he record failing to pre-
sent either an application Tor q con-
tinuance, or bill of exceptions to re-
fusal of it, such assignment of error is
not well taken. Objection TO the
venire upon the ground that one of the
commissioners who selected the juries
for the term was witness, and em-
ployed prosecuting counsel, cannot be
sustained, since it appears that ut the
time he acted as such commissioner,
he had not employed counsel, and had
no suit i'll court which demanded the
intervention of a Jury. That, while
considering of their verdict, the jury
were in the room where the homicide
occurred, examined the premises and
read the penal code upon the subject
of murder, is Il hypocrtical objection
of no merit, in view OF no showing
that their verdict was not influenced
| thereby. Returning to the court room,
the jury asked in writing: ain con-
sidering threats made by the person
! killed, together with the character of
the deceased as a dangerous man, and
one likely to carry his threats into ex-
ecution, are the jury to understand
that the person killing may be so inn
/ PEELED by fear of personal violence, or
/ deadly intent of deceased, by reason OF
said character and threats, rs to Justify
the killer TO prepare himself with a
deadly weapon aud putting himself in
the presence of the party killed. for
the purpose of engaging in n deadly
conflict ?" The court answered.:
mo" Held, correct. Presenting the
law of homicide in harmony with
every phase of evidence, and giving
! the defendant the benefit of charge
the evidence did not warrant, the
charge cannot be revised. The Ell
depce sustains the verdict. Affirmed.
Wilson, j. This was conviction
for murder in the second degree with
minimum punishment.-Rep.)
.Buntaln VS.. State, from Tarrant
county.-An affidavit for continuance,
if prenaturely made, and under cir
cumstances tending to show that its
grounds, by use of ordinary diligence,
between the date of the affidavit and
the trial, might have been obviated, is
unquestionably insufficient. The rule
! Is not, however, applicable to this case.
This case was reached in regular call
late in the evening. The State an
nounced, but defendant said that he
could not go TO trial for want of wit
nesses who could be procured by morn
ing. Thereupon the court requested
counsel to have their witnesses present
next morning or his application for
continuance prepared. Next morn
ing, in the absence of the witness, de-
PENDANT asked further postponement till
he could complete his application for
continuance. This the court refused,
and called the case peremptorily, and
the case was proceeded with. Held,
that the court did not err, the post
ponement in the first instance antici-
pating either the presence of
the witnesses or the presen-
lation of the motion for con-
/ tinuance. Whether or not defendant
has been injured by the action of the
court cannot be decided by this court,
since the bill of exceptions fails TO set
up the evidence TO be given by the alb
sent witnesses. That the delivery of
the pledge lin a prose tution for bur-
glary wherein the gravamen of the
oilense was the pledge of the property
should be alleged clearly, affirmative
~ and positively, and not by way of
inference, Is true, under the rule laid
laid down in Listens ease, IA Court of
Appeals, sis. But the objection that
IL was not done in this case Is not we'll
taken, The indictment alleging:
pom the security and pledge of
SAID watch, then and there by said b.
delivered TO the said n as such secur-