Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1884-04-22
THE HIGH COURTS.
syllabus OF Opinions Rendered AZ tbs
Austin Term.

w the stale, from Collin
county. The conviction in this case
was Tor an aggravated assault unon ons
Bal. the penalty ass, s,ed being n Ana
OF sSO. The testimony involved in Tho
1rst OF the defendants bill of
exceptions, being merely the opinion
OF the witness ona contested fact its
exclusion was not error. The ohiec.
lioh TO the charge of the court Ia I'M
tenable, since it was, In its eutiretv
much more favorable 10 the defend,
ant than the facts developed warrant.
ed. The evidence is ample to supnrt
the verdict, and 1t il affirmed.
House VIZ. the State, from Gonzales
county. On rehearing. When mecca
sary to establish identity in deyelopinv
the les gest9, or in making ont tbe
guilt OF accused by circumstance, con.
nected with the theft, or TO ex plain de.
PENDANTS intent with respect 10 the
theit or the property then Ia question.
IL was competent for the state 20 proye
theft OF Other property, at or about the
same time ana in the same neivhbor
hood, and that this other property was
found In defendants no, session when
arrested for the theft OF the property in
question, but the purpose OF such
proof should be explained. On que.-
ton OF acconpiices the court charged
An accomplish Is one who, knowing
the unlawful intent Of the other, aids
MN i'll the commission of the
theft, provided theft was
committed MS charged, then the
jury could not convict upon
his testimony. alone, unless cor
roborated in some material matter
tending to connect the defendant with
the theft" Held, that in view of the
testimony in this case, the charge
should have submitted the question Of
particeps criminis in its full import,
whether with original theft or any
after connection with the stolen prop
erty. RI hearing awarded, and iudg.
ment reversed and remanded. Hurt, J =.
Elan VI. State, from Dallas county.
notwithstanding former decisions of
| this court to the ell; ct that faulty
charges, 10y reason of omission or other
error, unless excepted TO, or corrective
charges asked, are not revisable except
in case of fundamental error, this court
under certain circumstances has POWER
to revise upon such charges. If the
force of evidence tending to establish
u defense is deemed weak, trivial,
light, and its application remote, the
court il not required to charge on it..
| If, ON the ether hand, 1t Is calculated
to influence the jury, the charge should
he given on such phase of case, and
failure to give it is, under any circum-
stances, revisable by this court. Nc
such defense is apparent in this case.
| The evidence is ample TO support the
verdict. Affirmed. Hurt, j.
Meyer VS.. The State, from Hays
county. The conviction in this case
was for the theft of thirty-five dol
lars, and the penalty awarded by the
verdict was term OF two years in the
penitentiary. The motion of the
assistant attorney general TO dismiss
the appeal because OF the defendants
escape from custody is sustained, as to
the fact of escape, as required by law,
by the affidavi,s of the proper officers
having him in custody; wherefore,
the motion must prevail and the
appeal is dismissed.
Missouri Pacific Railway vs.. Cox,
from Collin county. AS general
rule, damages to feelings are not
recoverable. But in actions for tort,
where the wrongful act was wanton or
malicious or grossly negligent,
attended with circumstances of insult,
outrage or oppression, the party
aggrieved is not limited to actual, but
may recover exemplary damages, the
evidence being sufficient. No such
circumstances in this case. Measure
of damages for Injury tn land and
growing crop Is the difference between
| the market value of the land imme-
diately before and after the injury.
The growing crop is part and parcel OF
the land, and damage thereto should
form part of the computed damage to
the land. Trial courts, in all damage
suits, should give definite instructions
as to the true measure of damages
applicable to all the facts. There was
no proof in this case, resulting from
the piling of rock on plaintiffs land,
and charges should not have been
given on thesubject. IT should have
charged that it was the duty
of plaintiff to protect himself from the
wrongful act, If possible, by moderate
effort and care or expense, on fail
ure to do which he could only recover
for such loss as could not have bees
thus prevented. Reversed and
remanded. Wilson, j.
Cleveland ct al. W.. Anderson, from
Tarrant county. As between parties to
a contract partnership can only ex-
list when there is II voluntary agree
ment made for that purpose. AS to
third parties, persons may be held liza
BILE as partners contrary to their eX-
pressed intention rs betH them
selves to be such. To constitute n part
nership as to third parties, all that is
! necessary Is that the parties to the
contract shall have community OF
interest in the profits, and it is not es
sential that there should be commu-
nitv interest in the property or cap
itaI nor that there should be an agree
ment to share losses. In this case q.
A. C.. in consideration of becoming
suretjes on SIS bond, were to receive
one-third of SIS profits on his contract
with the city of Fort Worth, and were
to receive and control, by express stipu-
lation. all moneys paid on S. contract.
Held. that the contract constituted
partnership between q. d Z. and s.
Bullard VS.. White, from Ellis
county. w. having judgment
AGAINST II. caused execution 10 be
levied on a bale of cotton which appel.
liant claimed belonged TO him. Trial
of the right of property in the justlcee's
court resulted against appellant, VINO
appealed to the county court, where q
liz Judgment was rendered. Appel
liant brought this suit by injunction to
restrain collection, upon the ground
that within ten days after Judgment,
he returned the cotton in like condi'
ton ms when he took it under
| .,,i,,, aud within the same period