Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1885-12-05
THE HIGHER COURTS.


t-s---s--..---
synopsis of Decisions Rendered nj the
Tyler sitting of the supreme Coart.
Austin Clark VS.. the State, appeal from
Grimes A quarrel arose between de-
PENDANT n d one Nowliu, and defendant
ran and picked up gun and said be was
going 60 Kill Nowlin. The deceased
caught hold OF the gun, aud while the
three were struggling over 1t 1t was dis.
charged aud the deceased was killed. The
defense asked charge that " the evil
dence showed that the deceased WAS ac-
cidentally or Internationally killed the
defendant should be acquitted Held, II
one committing an assault with intent TO
murder another accidentally kills Il third
party he Is guilty oil murder IN the second
degree. But II the act done is the uniu.
territorial homicide OF different person
from The one intended, but with
out malice, and while the mind
Is under passion arising from
adequate cause, the crime is manslnughtcr,
because the one intended is man
slaughter The intent Is the essence OF
the crime and whore the intent ard the
act resulting from itare the same, whether
the fatal shot takes effect upon the party
at whom aimed, or on someone else, the
guilt is the same, except In case of muir
der upon express malice. cnarge upon
the laW of manslaughlcr aud of self dee
Tense was all that was required la the
case stated. Affirmed. 0plmon by White,
T.. j.
j. Il. Rose vs., the State, appeal from
Van Zandt. The defendant heing charged
under art. GsS, T.. c., with wiiliully aud
miscmcyously injurlng personal proper
", the court charged that the term ''wlli-
fully" as used meant voluntarily and
knowingly Held, error---the meaning
is with evil intent or legal malice, or
without reasonable ground for believing
the act done lawful, IL appears
that merchant had boxes aud
goods displayed on the sidewalk in such
Il way as to obstruct the same; that do
PENDANT passed aud asked the merchants
clerk II he was going 70 take the things
off; aud, being answered no, no proceed
ed TO Kick them down and of the walk
Held, this Evidence did not warrant u
conviction under the statute cited. A
prosecution by Information cannot be
carried on without complaint, and the
complaint must appear In the record on
appeal. Reversed and rcmandcd Opin-
ion by Wilson, j.
Joe Milstcad v. the State, appeal from
Shelby. The defendant was charged with
aggravated assault Ia that he "dld as.
SAUL, beat, strike and bruise 4. A. Pax
ION IN court of justice then and
there being in session, and the said Pax
ton being then aud there an officer, 70 wit;
justice Of the pence. He was convicted
OF simple assault. The objection that
because the evld euCe did not show that
the assault was made In 0 court Of JUS
tico the conviction cannot be had under
the allegation Ia the Indictment, " not
well taken. The allegation that Il was
committed in court OF justice Is matter
of grayatlon, which, mol being sustained
by the evidence, leaves the charge good
for simple assault. Affirmed. Opinion
by White, +. j.
] Il. Rainey vs. the Sbte, appeal from
Cooke In reversing 0pd Diminishing this
proposition upon the ground that tie
Indictment WAS found by a gand iufy
composed Of more than twelve men, the
court Ia an elaborate opinion adheres
20 Its former decisions aud cites author
tiles fiom Alabama, California, Ohio and
Texas. Opinion by Hurt, j.
North & Go. vs.. Lambert 81 al, appeal
from llfllNs lH2h n ttAlut ~ litNA u Iilikt
make aud file his conclusions OF fact aud
law was made after Il motion Tor new
trial was overrulod ~ no ground for re-
fusing the request when il IL made IN
n reasonable time after the trial Bur.
net vs.. Alternately, Wilson Con. Rep,
775.
IT is made 70 appear that Immediately
after the motion for u new trial was over
40 DIstf.
ment OF facts 10 opposing counsel for
agreement falling 20 agree, each
party submitted their statements
10 the trial Judge and appellant requested
him 10 prepare and iile true statement
Of facts lie failed, or refused 10 do 80.
Held, that the appellant was deprived OF
his rights BY this failure, without fault
on his part, and II ~ reversible error.
Reversed aud remanded. opinion by
Hurt, j.
oliver Spain vs. the State, appeal from
Crimes This conviction Is for the theft
~ n colt, and the Indictment falls 10 al
lege that the taking was fraudulent, and Is
therefore substantially defective Tho
point Is made that MS the evidence
shows that the animal was three years
old when taken, Il wa1 not colt, there
fore there Is variance between Tie allie.
CATION aud the proof. The point
Is not decided, but the court
lntlmates that IL would be
AS easy 10 describe the animal as
horse, and so the question be cyAded.
Reversed aud dismissed. Opinion by
Wilson, j.
Texas & Sc. Louis Railway Company vs..
b. Il. Melear, appeal from Navarro. This
IA the aecOud Appeal In this case the
former decision VIII be found IN Wilson
Con. Rep. p f02. The Judgment WAS re-
yerecd because the plaintiff set up Ia Inc
county court cause Of action not relied
on 10 the Justices court. on the second
trial plaintiff amended aud abandoned
this cause OF action. bat the court allowed
him 70 nlake proof IL. Held, error anu
10 save further trouble The judgment n
reversed and The suit dismissed. Opinion
W Wilson. 3.
facet, Nol,nfsaler ~ 4l.a Sfafa nuneal