Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1885-06-29
fOIfRT OF APPEALS.
II ths Decisions Rendered at
II Austin Sitting Of the
Court Of Appeals.
!. From the Full and Official Re-
! n the Rulings and 0pin-
ions Rendered.
compiled for the Gazette.

at vs., the state, from Bosque
Al, This case is in all respects
M a. the preceding one except
nuse ia alleged to have been
pled on q different day, and in
= the defendant pleaded spe
Ast he had been convicted OF
.oticsl same offense in the other
I, ivhich special plea was in due
! h ud was submitted by the court
.ary. The evidence shows but
having at which money was bet
house, and is therefore insult
H. show that the house was one
ouly resorted to for the purpose
rlpg, as charged In the indict-
n Besides, the evidence amply
Is the appellants plea OF former
uon. Reversed and remanded.
Va. the State, from Robertson
It. s the duty OF the trial
"a . award a new trial when the
\ Is against the evidence. The
scs in this case showed that the
isnt took the hog openly, in the
ne, in the presence of quite
NJ Of his neighbors, under claim
perty from his own hog range
which he had running at the
large number of hogs. Under
facts, there being nothing to
n ihst the defendant knew when
ok the hog that it belonged to
her, the jury should have ac-
Md Reversed and remanded.
Either vs.. the State, from johnson
H. Violence does not amount to
Vault when committed in defense
ss property, or against the un-
klyiolence of another offered to
Property. (Subd. 8, Art. 400
4 Where force is used to pre-
Mch violence, 1t is for the jury to
3hether II was necessary TO effect
tarpo.e I'D. art. 49l), or whether
in excess of or disproportionate
g aggravstion and impending
er to the property. II the inten-
4 the defendant was only to pro-
nd defend his property against
htened aud impending violence,
although upjustifiable means
s have been resorted to, it was
b question for the jury to decide
Whether, under ali the circum-
&es, the violence used was with in.
10 irjure the party for the pur-
hi protecting his property. Ii the
fnee used in this case was not
ROut intent alone to injure F., but
$event iIjury or destruction to his
B property, then the violence
ID not amount to an assault,
interpolation of law. 1863 n. Y. Oh.
Gcharge of the court did not pre-.
the law applicable to the facts in
Tease, in harmony with the above
and was, therefore, error. The
al charge requested did, in sub
Pc, and, hence, refusal TO give 1t
Error. Reversed and remanded.
ply vs. the State, from Falls
Ply When he died, intestate, w.
NEned horse, saddle and bride.
Icelendsnt, his brother, and NJ j.
Al' half brother, We're his only
i M. j. F. took possession of the
#fly, without administration, and
TO Faulkenhagen. This prop
vas stolen from Faulkenhagen,
4ner with an overcoat, and defend
nconvicted of the theft. l. Upon
nth OF the intestate the title to
fseperty vested in his heirs, towit:
aelendant, his brother, three
a interest, and NJ. ]. F., his half |
M the remaining fourth. r. S., |
io4o-l64S. The title passed |
va vested in the heirs i'm
Aeiy upon the death of |
3ales,ate, subject to administra.
va sucn title could not be di-
aout ofthem except by their con-
Mby due course of law, IA Tex.
4 y. Art. 1917. 2 Our statute
VS. 1.-THE person accused of the
part owner OF the property,
aslng does not come within the
tcon Of theft unless the person
nom 1t is takensbe wholly en-
the possession at the time. P.
ASl.) 1t is clear from the evil
mat when the mare, saddle and
were taken from the supposed
faulkenhagen, the defendant
pArt owner thereof, because his
ny had not been Invested by
|'Aulhorized act of M. j. F., who
L not pass title to more than
|Na Interest. Therefore. IL APP
mat Faulkenhagen was not
sntitled to the possession, but
|sl,ndant had as good If not bet
4 ptthereto. That M. ]. f. sold
lwehy to pay the intestate's
sAGpenses, etc does not legalize
~ and the charge Of the couct
A subject was erroneous. 3
TN the evidence was INSULT
identify the defendant as the
sho took the property. Re-
ssnd remanded.
Faro vs.. the State, from Hill
u, The penalty prescribed by
lSr assault WITH intent to muir
sonhaement in the penitentiary
TESS than two or more than
years. p. G. Art. 500. The
y This instance announced
Ssilod OF confinement at mot
~ TWO nor more than five years.
yen heretofore held that mag
|, = 'he statute expressly requires
NV cnarge shall distinctly set
p' Jaw all c be to the casen
.att 80 II The charge is in
M 20 penalty, though in favor
r.isoner, the conviction cannot
,s %,letner or not the charge was
[S. r y. IA CT. App, 524; lid
f,sss Y, l.. OF Texas, 5l7 aud
~ ,.uulctment alleges that Il as.
N = committed with knife, a