Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1886-02-15
COURT OF APPEALS.
Yesterdays Decisions of the Court nj the
Galveston sitting.

Galveston Sitting.
Missouri Pacific Railway Company Va.
w. G. Jones, appeal from Galveston.
The suit being instituted in JUSTICES
court on an account for damages occa-
sionedby Ere originating from the engine
of the defendant, to the fences, posts,
grass and crops, etc. IL was not error
to allow damages for injury done TO the
land by the tramping of cattle and the
implanting thereby Of joint-grass, no OBJ
lection having been interposed by the de-
PENDANT to the Introduction OF proof of
such injury. Tho pleading being oral,
the presumption is that 1t was pleaded or
some objection would have been made to
the proof, Affirmed. Opinion by will
son, j.
Stephen Heron VS.. the State, appeal
from Guadalupe. A witness in behalf OF
defendant testified that the beef steer was
brought to defendants house in his alb.
sence, butchered and placed in defend
ants smoke lease by Mexican. Held,
that the general charge not presenting to
the jury this phase of the case, it was re
YersiDle error to refuse to give special
instruction requested by defendant in
substance that the defendant must have
been concerned in the original taking to
| Justify conviction for theft, and that he
could not be convicted for receiving the
property knowing it to be stolen.
! 1t was not for the trial
Judge in the first instance, or
this court on appeal, but it was for the
| jury to pass upon the credibility of the
witness and the right to be accorded to
his statements. Reversed and remanded.
Opinion by Wilson, j.
| Dick Schultz VS.. the State, appeal from
Dewitt, The indictment alleged the
stolen horse to be the property of Hon,
and that II was taken from the possession
of Anders, holding the same for the
| owner and negatiyed the consent Of either.
! Holt did not testify and Anders stated the
facts connected with Hollis leaving the
animal with him. Also that some month
or more after the taking Holt came TO
witness and inquired for his horse as he
wanted to ride him on "a trip. The wit.
ness did not know where Holt was at ( he
time of the trial, but said "liolt was the
| owner of the horse and had the right to
take him or send another person for him,
but do not believe he would have done
so without giving me notice." Held,
! that while circumstantial evidence as to
the want of consent cannot be resorted
to so long as positive or direct proof is
available, to avail himself OF this rule
the defendant must except at the time
the proof is offered and save the point
by bill; this not having been done in this
case, the defendant will not be heard To
complain. Where there is no direct evil
dence OF the fact of taking mere than
recent possession, the court should give
/ the rule as to circumstantial evidence.
Reversed and remanded. Opinion by
White, p. j.
j. IL. Anderson VS.. the State, appeal
| from Cherokee. Appellant being on trial
for ''perjury" in making Affidavit to
claim as teacher of u public school, one
of the trustees who had signed the check
for the amount OF she claim, testified for
the state that he and the other trustees
whose names were signed TO the check
signed the same IN favor Of Anderson
/ that at the time Anderson had not taught
the school for the month of Februaryi
that the trustees believed that the money
drawn for If not drawn out OF the treas.
ury by them would lapse and be lost "a
the school; that they made contrac,
with defendant TO teach for the month oil
June. and they suggested TO him TO draw
out the money IN February and b,
could teach in June instead o.
February. Held, that this connection
with the transaction made each one Of
the trustees On accomplish TO the extenl
al least % requiring their testimony z
be corroborated, and the court should
have so instructed the jury. Reversed
and remanded. Opinion by White, i. .
wharton Branch vs.. August Nelneche
, appeal from Galveston. Kleinecht
, hyought suit against his wife for di