Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1885-06-30
COURT OF APPEALS.
Synopsis Of the Decisions Rendered a.
the Austin Sitting Of the
Court Of Appeals.
Made up From the Full and Official Re
port Of the Rulings and 0pin-
ions Rendered.
comnIled for tne G,rel,o.

Complied Tor the gazette,
Willis VS.. the State, from Travis
county. The conviction in this case
was for murder in the second degree,
the penalty against the appellant be.
ing assessed at term OF seven years
in the state penitentiary. The only
question Of any Importance presented
on this appeal is that the evidence
showing that at the time the de.
ceased made the statements which
were received in evidence AS dying
declarations, he had hopes ofrecovery,
and that for that reason such declars-
tons were improperly admitted rs evil
dence against the defendant. But
upon an inspection OF the record Ii is
found that the testimony is not obuoN.
ious to the objection, hut that, on the
contrary, the statements come proper.
ly under the rules governing dying
declarations. Affirmed,
Grsgg vs. State, from Taylor county.
The judgment Of the lower court for.
feiting the bail bond of the principal
| in this cause, was affirmed ut previ-
rehearing now under consideration
sets up that the principal In the bond
was dead at the time that the judg-
ment nisi was rendered in the court
below, and that such fact was properly
brought to the knowledge OF the said
court at the time OF the proceedings.
But, as shown by the record, the
death of the principal was shown be.
low only by rumor, which question
WAS duly, and as he had right 10 do,
passed upon by the trial judge, where
fore 1t Is beyond the province of this
court TO interfere. Motion for rehear-
| ing overruled.
Western Union Telegraph Company
Va. Heysers, from Callahan county.
In this case the appellees recovered n
| Judgment against the telegraph COM
pany for the cum of Sl22 so as dam
| ages for failing to transmit a message
ordering certain machine attachments
for reaper and binder. 1t WAS shown
that by reason Of the failure Of the
company to deliver the said message
the appelee's machine was idle for the
period of four days, during which time
their wheat crop was greatly damaged,
the appellees being unable to harvest
the same with their imperftc. ma
chine. The evidence further showed
that the appellant was fully informed
OF the inheritance of the message and
OF the injury likely To arise II delivery
OF the same was delayed. This evil
dence was ample to fix negligence
upon the appellant and to sustain the
judgment. Affirmed.
| McUann VS.. the State, from 1arrant
county. The appellant in this case was
awarded term of fifteen years in the
penitentiary, upon his conviction,
under an indictment which charged
against him the offense OF highway
robbery. The indictment has been
carefully inspected, and is found to
contain all the description and other
allegations necessary to charge the of
Tense. The charge Of the court,
which in all cases must be considered
as u whole, and not in detached por-
tions, presents correctly the law appli.
cable TO the issues which were raised
upon the trial, and the evidence is not
only sufficient TO sustain the verdict,
but il directly and positively incul-
pates the defendant as the guilty
agent. Affirmed.
Fawler VS.. the State, from Falls
county. The appellant in this case
was convicted i'm the court below oi
misdemeanor theft and his punish
ment was affixed at fine Of twenty
dollars and confinement in the county
iail for twenty-four hours. The one
question of importance presented for
the consideration OF this II whether
or not, in order to sustain the convic-
ton, il was necessary to prove the
want of consent TO the taking If the
general owners OF the stolen property
This question has been heretofore de
cided in the negative in the cases o.
Frazier We. the State, and Bailey vs.
State, reported in these columns. The
doctrine announced in those cases II
here reasserted Affirmed.
The "Rsnchmann Printing Com
psny VS.. ST. Louis Type Foundry
from Mitchell,county. Appellee, by At
tachment, sued the appellant in Al
action for debt. Upon the trial th'
debt was confessed by the appellant
but the appellant reconvened in dam
ages for the wrongful levy Of the at
tachment, the plea IN reconVentioI
setting up that the attachment wa
sued out and levie1 without probable
e cause, and that the property attached
was exempt for forced sale under at
tachment or other process. Held
that the burden of proving the fact
alleged in special plea in reconventioI
rested upon the appellants. The recor'
ST IL destitute Of evidence sustaining tn
:, plea, and the judgment Is affirmed.
smith VIZ, the State, from Hsrti
county. This was n conviction 10
= rape, In which the jury awarded IN
appellant as his punishment term
five wears in the state Penitentisry
The main assigned error relied upo
relates 10 the correctness OF the charg
J of the court. But the transcript bring
up no bill OF exceptions, showing TINS
\ the charges complained OF were e.
cepted to at the time they were giVel
, In such case this court will not reVi'
: the charge unless the errors con
planned OF be fundamental in chsIa
J, Ter or such as may in all prooaoill'
|. have operated, in the particular cas-
i 10 the injury Of the appellant !
T. TO the evidence, II was co
I, elusive in establishing the guilt OF Z