Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1886-12-23

mitted the following charge: "It you be-
lieve from the evidence beyond rea
sonable doubt that the defendant
did unlaWfully kill william Hous-
ton by shooting him with certain
pistol, and that the same was done under
the immediate influence OF sudden pas
/ sion (as herein before de1ned) arising
from an adequate cause, such as insult
ing words or conduct OF the said Houston
toward female relatives of defendant,
you will find the defendant guilty OF
manslaughter.n This was objected to by
appellant, because 1t requires the killing
TO take place under the immediate lnfiu-
ence OF sudden passion. Ia the opinion
OF the writer there is reversible error 10
this charge. His .rethren, however, dis
agree with him. On the subject of self
defense the court gave the following
charge; "lIJmicide is UNSUITABLE In
the protection of the person
against any unlawful and violent
attack, but IN such case all other means
must be resorted TO for the prevention Of
the injury, and the killing must take place
while the person killed is in the very act
OF making such unlawful and violent a.
tack" Held erroneous. This court
holds that II an attack of less magnitude
than murder was made on appellant, the
court should have instructed the Jury that
II tine attack produced in the mind Of de-
PENDANT reasonable expectation or fear
OF death, or some serious bodily injury,
the defendant would not be required to
resort to other means to prevent the
threatened injury, + kill while his ed.
versary was II the very act of making an
attack, but may kill instantly. Reversed
and remanded. Hurt, j.
John Vanvlckle VS.. the State. Appeal
from Rains county. The indictment in
this case reads as follows: "In the name
and by the authority of the state Of Texas
the grand Jurors OF the state Of Texas,
charged, empauelled and sworn to dill-
gently inquire Into, and true presentment
make OF all crimes AMI offenses against
the law committed, within the body OF
the county of Rains and state of Texas
that one Jonn Vanvickle of the county OF
Rams and state of Texas, with force and
arms, In the county of Rains" etc.,
proceeding then to set out certain
facts given TO constitute the offense of
'falso swearing" In order to procure the
Issuance Of marriage license by the
county clerk Held, that Ia our opinion
1t Is only theoretically stated that the
grand jury was the grand jury OF Rains
county. There Is total want OF connec-
ton between the allegations with refer
ence TO the impanelling Of the grand Jury
and the facts stated with regard to the
subsequent acts of John Vanvickle. The
usual ordinary words OF accusation, TO.
wit; con their oaths present." II will be
seen are entirely omitted, and no similar
or equivalent words are used or
| substituted, In snort, while this
paper shows grand jury for Rains
county were impanelled To inquire into
crimes committed In said county, and
while 1t shows that John Vanvickle did
certain acts therein st out, it is not
shown, nor Is II anywhere alleged that
the said grand jury charge, aver, allege,
or accuse the said Vauvickle with dong
those acts. 1t is certainly not stated
that the grand jury charged or accused
him with the commission of those acts
and deeds. Then who did? We are M
where informed. Reversed and dis.
missed. White, = j.
Eaton, Guieau & Co. VS.. Leon Caperon.
Appeal from Taylor county This is Il
suit for damages, actual aud consequent
tial, by appellee against appellants, for
the nondellvery OF l40 barrels OF apples
TO be delivered between the 18th and 20th
OF December, 1884. Appellants contend
that the court below had no Jurisdiction,
because they only claimed $i75 damages,
aud they were not entitled To consrquen.
tial damages. We cannot agree to this.
Appellants knew that the apples were
ordered specially for the holidays, and
that the demand for apples during the
holidays would be very great, and
that the great probsb lily was that APP
pellee had not supplied himself with APP
Piles from other parties,a and we are clearly
Of the opinion that appellee was entitled
TO consequential damages, thus giving
the court below jurisdiction. Plaintiff,
In the court below was permitted, over
objections of defendant, to Introduce In
evidence that the apples were for the
holiday trade Held, that there was no
error in admitting this testimony.
Affirmed, HUT, j,
William pnpps VS.. the State. Appeal
from Bosque county The Judgment OF
conviction ktor theft rendered 10 this case
In the court below is wholly unsupported
by and Is contrary to the evidence sent
up in the record. Reversed and re.
mauded. White, z j.
Ben Hart VS.. the State. Appeal from
Hopkins county, TIE state was permit
ted over objections OF appellant 10 prove
that defendant 70 feited his bail bond.
Held, not error, Flight by d, fepdant is
admissible IN all cases whether the evil
denoe be clrcumstantial or direct. The
following charge was objected TO by
defendant because it did not in
struct the jury 10 acqult II the
state iailod 20 show that the
explanation Of defendant was false.