Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1885-11-02
TIE nIGHER COURTS.
synopsis OF Decisions Rendered nj the
TYLER sitting of the Court of Appeals

TYLER sitting of the Court of Appeals
| lee walker VS.. the State, appeal from
| Marion. The Indictment alleged that
defendant "did unlawiully snd with
! his express malice aiorethoughi, Kill ana
murder one J. H., by shooting him with
la gun. contrary" etc. Held, sufficient
| Wilson'S Grim. Forms, p HS. The
statute requiring the names of witnesses
TO be indorsed upon the indictment is
directory, and such Endorsement is not
a constituent part Of the Indictment nor
essential to its validity, Service OF
cory upon a defendant which does not
contain the Endorsement which is on the
original, vs. not Tor that reason defective.
The state proposed TO prove by one Cnl-
berson the confession Of defendant yolun-
tarily mnde before arrest. Culberson
was a lawyer and neighbor Of defend
ant. CulbersOn subsequently appeared
! for defendant before an examining court
and waived examination for ddendant-
pending negotiations for his services as
counsel in the case, but which were never
cOnsummatcd. Objection TO histestitying
was sustained The state then proposed
| TO prove the confession by the mother-in-
| law OF Culberson, who was present and
heard the confession To Culbcrson When
objection to this testimony was over
ruled defendant agreed that Culberson
might testify instead Of his mothcr-in-
| law, as their evidence would be the
| same, and ne testified IN the case, but as
! "a substitute for his mothcr-inlaw Held,
| That the privilege OF communications be-
I tween attorney and client is not eXtcaded
10 third persons who are present and hear
| the conference, and the evidence in this
case was admissible. The knowledge
OF Mrs. Bridges, the mothcr-n.law, was
not protected by the privilege and the
defendant could consent that his attorney
might testify in her stead. Whar. Grim.
Ey. sec. 502. Affirmed, Opinion by
| White, =. j.
| Munzcshemcr ct al VS.. Allen ct al,
appeal from Bowie. The legality and
( sUnjcieucy of a notary's certificate Of
I protest Of prOmissory note for non-pay-
mcut and notice thereof to indOrscrs are
questions OF law To be determined by the
court and not of fact for the Jury to pass
upon. Reversed and remanded. Opinion
by White, P.J.
southern Insurance Co. vs.. NJ. Levy,
appeal from Bowie. The record shows
| that the court adjourned for the term
on Aug -. The statement of facts found
In the record was nlcd Aug. Is, and no
| orders appears allowing the same to
be filed after adjournment. The state
meut of facts cannot be considered, and
IN the absence of such Il statement Of
facts as required by law, this court viii
only look to see that the petition shows
% cause Of action and that the charge,
when considered in rotation to the fact
alleged In the petition, is not radically
] .,H.t a
TX pare Benton Kramer, appeal from
Young Where the record shows that the
reutpr ON hearing under habcas corpus
was rcmanded by order OF the court
to the custody OF the sheriff this court
win presume that he is held in custody in
obedience to said order.
The rules governing the forwarding OF
( transcripts to this court on appeals IN
/ other criminal actions do not govern APP
/ pcalS in hahoas corpus cases. No DartiC-
/ ulpr mode is prescribed in such cases
A person arrested for violation Of the
| local.option law may test the validity of
the election by means of the writ OF
hahcas corpus, II the election was not
conducted in accordance with law it is
void and not voidable, and it may be
questioned collaterally.
II appears from the record that only
one copy of the order for the election was
posted twenty days before the election
the other four were posted less than
twenty days. Held the election was
void; the law is quasi-local or Specla
and TO put it in force there must he O
strict compliance with the statute. The
election being void the rclator is lille
gally restrained and he is discharged
Relator discharged. Opinion by Will
sou, j.
John Arto VS.. the State, .ppeal from
Galveston. The court charging upon the
law Of Self-dcfeuse instructed 'that If th,
jury believed from the evidence that de
PENDANT fired the fatal shot under infuenc,
OF terror it would be justihable." Held
that the charge is erroneous in limiting
the right Of Self-defcnsc in a manner no
authorized by statute or any adjudica
ton.
II the defendant, intending to kill de
ceased, entered the house Of deceased
and provoked the difficulty which re
suited in the homicide, he cannot claim
that it was i'll self-defense. II, however
the defendant was mere trespasSer
Z and provoked the occasion, without an,
intent TO Kill or do deceased serious
bodily harm, and without intent to com
init any felony, he is not deprived WHOLLY
OF his right TO defend himsoli-such rich
will only extend to reducc the homcid,
TO manslaughter. Reversed and re
handed Opinion by Wilson, j.
Ike Phillips VS.. the state, appeal from
Gonzales Where party /!
, found in possession Of propcrt,
! recently stolen, and an ex
PLANTATION of that possession is demanded
directly or circumstantially, what he say,
in explanation is admissible in eyidcnc,
in his behalf The state having PROVED
by II Witness that he purchased the stoler
horse from defendant, and that he hat
asked the witness at the time who put thu
: brand ON the horse, the defendant wa,
entitled to prove his answer to that qucs
ton,
( Where q stranger Is called as witnes.
TO testify TO an isolated fact, and is cross
examined IN n manner tending TO dis
credit his testimony, the party call
ing him may show the good character Of
. the witness for truth and veracity where
he lives Whar Grim Ev Ial