Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1885-12-12
THE TYLER COURT.
Aaui'ional Decisions Rendered by The
Court OF AppenIs.

lehuaht ordered the names OF the Jurors
summoned on the regnlal panel for the
week, twenty-four In number. 10 he
placed in the box to be drawn theretrom
and list to be made ont hv the cierl,
from which the two remaining inrors
necessary 10 al the panel should ID ~
iected. Held, that this action was m
strict compliance with the law II X oniv
alter the special venire aud the rnonIa,
Jurors for the week are exhausted I'M,
taiesman nom the BODY Of the co,ln,y
can be ordered.
An Indictment is not subject 20 exceS.
ton because OF the failure OF the f,remsn
oil the grand jury TO sign IL officially.
Inc theory OF the defense was that II
appellant killed deceased he WAS instl6a.
ne IN doing so, because at the time al
the homicide the deceased was in the act
Of, Or Ia fact, had already placed an OBJ
sTnctiOn on the railroad with th,. intent
70 wreck the train, and thereby endanrcr
the lives OF persons on the train Hold
to Justify homicide Ia defense of ones
own life or that of others. II nusi he
necessary resistance to aggression an
parently violent immediate and immi.
nent towards the person about TO be In.
Juredi and in no case of felony or M.
tempted felony is it lawful TO take life
Where the party may be arrested and the
lcl0ny thereby prevented, and the follow
ing charge was correct:
"Ihe act OF willfully placing an ohstruc.
ton upon the track of a railway, endnn-
gering human lite thereby, Is felony;
and under the law any person may, with
out warrant, arrest the offender when the
ohense is committed within view of the
person making such arrest; but under the
law neither officer nor other person can
lawfully take the life OF such offender.
whose arrest may be so made or sought
to be made, unless the officer or other
person making the arrest has Just ground
to fear his own life will be taken, or that
he will suffer great bodily harm, in which
cases life may be taken.
If,therofore, the jury find from the tes-
timony that the deceased placed such OBJ
stacle upon the track OF the Austin &
Northwestern railway, endangerlng
human life, In view of defendant, and that
defendant sought TO arrest deceased, and
that deceased resisted, or so acted as to
give the defendant Just ground TO fear
his own life or great bodily harm, and that
in such circumstances the defendant shot
and killed deceased, then such killing is
by the law excused, and the jury should
acquit.
"If, however, in such attempt by de-
PENDANT to arrest deceased, and IL there
be in evidence nothing showing, or tend
ing to show, that the deceased so acted
as to give defendant just and apparent
ground of fear Of his life, or of great
bodily harm, and If the jury find from the
Il
that In such circumstances the defendant
shot and killed deceased, then such Kill.
ing would be unlawful, even if the killing
was made in attempting the arrest OF the
deceased; and II the killing was intention
ally and deliberately done, the act would
be murder.
"The mere placing of the stone upon
the railway track, If done, would not ex-
cuse or justify the killing, ifproyed."
The judgment convictng defendant of
murder in the first degree Is affirmed.
Opinion by White, P.J.
Wash Washington vs.. the State, appeal
from Falls. The defendant being on trial for
homicide, witness for the state was al
lowed over objection TO testify that some
three or four minutes before the killing
and at place some one hundred yards
from the place deceased was fonnd, 'the
deceased told him that he had seen de-
PENDANT going down the slough with a
shotgun on his shoulder" The evidence
further showed that deceased was killed
on the slough and with shotgun. Held,
that the statement OF deceased was res
gestae and admissible.
That the bailiff who had charge OF the
jury during the trial and during their de-
liberation was witness for the State is
not cause for disturbing the verdict.
Death penalty affirmed, Opinion by
Hurt, j.
George Young VS. State, appeal from
Ellis. Counsel retained for the state In
his argument said; "Gentlemen, In the
back part of this room sit a number OF
negroes, who are watching this trial to
see If yon viii punish negro for muir
dering his wife. II You don't convict
this negro people will not bring them 20
trial hereafter, but will hang them on the
spot = Look at the defendant; there
he sits. Can you not see the demon In ms
eyes? Does not his countenance declare
him murderer? If you turn him loose
you encourage mob law" Now, II
after the courts attention WAS called
to this very Improper language, the court
had refused to suppress the counsel, or
such language had been persisted In
without reprooi, this court would feel
inclined to reverse the judgment Or, ii
the court had refused to instruct the jury
not 90 regard such arguments on request,
this would have required reversal Of the
judgment.
While the rule is that counsel either for
or against the prisoner should never ex-
press their opinion as to the guilt or IN
nocence of the accused, yet this court
would hesitate at this day TO reverse a
Judgment because Of violation Of this
rule. Death penalty affirmed, Opinion
by Hurt, j.
c. r.. Barnes VS.. w. II Brooker, appeal
from Hopkins. Plaintiff declared upon q
contract nuder which he was TO receive a
commission on all -four sold by defend
ant in Texas. Held, that Nnder this ale
CATION it was error to allow evidence that
plaintiff was to receive a commission
upon all -four shipped by defendant to
customers in Texas TO whom plaintiff had
previously sold DEFENDANTS -four, or "a
whom plaintiff had introduced the four