Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1885-06-01
COURT OF APPEALS.
Synopsis of the Decisions Rendered at
the Austin Sitting of the Court
Of Appeals,
Made up From the Full and Official Re.
port of the Rulings and opin-
ions Rendered.
compIled for the anzeLie.


son county. AS in the case of Isbells w.
Everheart supra, the affidavit In forma
pauperis in this case, made subsequent
to the adjournment Of the Justices
court in order to secure appeal to the
county court in default of an appeal
bond, was insufficient, because made
before the Justice, who is not shown to
have been notary as well, and subse-
quent to the adjournment OF the JUS
tice's court. Again, the affidavit, even
were it shown that the Justice was
notary, is not certified by the county
judge, as required by law. The appeal
was properly dismissed by the county
court. Affirmed.
Texas d Pacific Railway VS.. Cook,
from Dallas county. Notwithstanding
the decision In the case of the Texas
&.Pacific Railway vs. Taylor, . VIII.
can Rep. sec AIS, the, rule as laid down
In the case of Foreman vs.. Gregory, II
Tex. 1893, is the correct one, viz:
When defendant removes case
from the Justices to the district court
County COURT by certiorari. the
plaintiff or appellee cannot be ruled
to give security for costs on the motion
OF the defendant or appellant. The
evidence sufficiently establishes the
fact, not only that the check was pre-
sented, but that the bRggage-master re-
ceived 1t and delivered the wrong
trunk, which trunk appellee left at the
baggage-room, when she first went in
person to demand and get her own.
II Is established beyond doubt that APP
pellee made a proper demand for her
trunk of clothing. In damage suit
against common carrier for second
hand clothing lost, having no special
marketable value, and useful chIctiy
to the owner, the measure OF dam
ages would not be their market value
at the intended place Of delivery, but
the actual loss in money the owner
would sustain by being deprived of the
use of the articles. Affirmed.
Heabew va. State, from Gonzales
county. The question involved in this
case was not whether g., the party
whom defendant claimed gave him
authority to take the animal, was In
fact authorized to grant such permits
sion, but, under the facts shown, the
question was did defendant take the
animal upon the authority of c., be-
lieving at the time that G.. had au'
thority to,Authoriza him to do so. The
special Instructions on this phase of
the csse referred were ~ follows: III the
! account given by the defendant Of the
reasons which induced him to take
the animal Is reasonable and probably
true, or If defendant believed it to be
true, whether it was or not, the jury
should scquit the defendant. Wheeler
or not g. mad any authority to sell the
animal, or whether he did in fact give
any authority to defendant to take
said animal, IL defendant really be-
lieved that said q. did have and did
give defendant authority to take said
animal, the jury should acquit. Held,
that the instructions, under the pecu-
| liar circumstances Of this case, should
have been given. The evidence as dis
closed by the record does not support
the conviction. Reversed aud re-
manded.
Kelley vs. the State, from Gonzales
county. 1t is settled that when
necessary to establish identity In de-
veloping the res gestae, or in making
out the guilt Of the accused by circum-
stances connected with the theit, VI 10
explain the extent with which the ac-
cused acted with respect to the proper
| ty he is alleged to have stolen,
| it Is competent for the state TO
prove that other property was
stolen at or about the same time and In
the same neighborhoOd from which the
property in question was taken, and
| that this other property WAS founo IN
| the possession of the defendant when
arrested for the theft of the property
for which he is on trial. Under such
stat of cases, however, 1t Is the duty
| of the court to explain in the charge TO
the jury the purpose OF euch proof;
The evidence admitted in this case did
not come under this rule, and was erro-
neously reserved. Reversed and re-
manded.
Marin VS.. the State, from Brown
county. The conviction In this ease
was had under an indictment based
uron article 1865 OF the penal code
! which provides: Ifany person shall
permit any game prohibited by the
provisions OF this chapter 10 be played
| in his house, or house under MS con-
troll. he shall be fined not less tnan
ten, nor more than one hundred DOL,
! lars. The court charged; Shouid
YOU believe there was lease from de-
PENDANT to some other person OF the
room in which the gaming took place,
and that said room was leased Tor a
gaming house to the knowledge OF de-
PENDANT, you will find him guilty as
charged in the indictment. Held, that
this charge had reference 10 the OF
tense denounced in article 366, +. O.,
which i another snd different. ofiense
with different penalty to that FOR
which defendant was on trial. The
keeping ana exhibition OF a table Tor
gaming, whetherln a public or private
room, is an offense. and in an indiot-
ment for that offense need not distin'
euish the character Of the room. Re
versed and remAnded.
Halfway Va. Saul, from Williamson
county. Motion TO retax costs. When
ever Judgment on appeal Is reversed
End rendered az the cost OF the APP
eIlee ne should pay the coats not only
on sppesl or in this court. but also the
costs OF the transcript. In this case
I