Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1886-12-06

citala In the Judgment. III tne rtcOru
shows that the defendant p eaded not
guilty, but is silent respecting the ar
raignment, this court presumlng that ar
raignment was waved, will not
reverse the judgment OF con
ylctlon for want Of arraignmenti but
II the record shows neither an arraign.
ment nor plea the judgment will be set
aside. Defendant must exhaust his per-
emptofy challenges or he will not he
heard 70 complain OF the COMPETENCY Of a
Juror on his vor dire. The testimony OF
the physician who waited on the daughter
Of defendant during her confinement, In
regard to conversation which he over
heard between defendant and his wife,
was competent and pertinent TO show the
design and intent OF the defendant TO DIS
pose Of the child, and thus keep secret
the disgrace which had befallen his fam.
lily. John, Fannie ana Emma Steagall
testified TO certain facts OF damaging
character against defendant az the exam
ming trial. These witnesses were minors
and children OF defendant. In the court
below one Munday made all avlt that
these children were Ia Tennessee, and the
state, over objections Of defendant,
was allowed to introduce writ
ten statements of their evidence
IN the examining trial. Counsel for de-
Tense also asked that Munday, who was
/ present In court, DC called and sworn and
tested under the direction OF the court az
70 his knowledge and means Of knowledge
OF the contents OF his affidavit, stating
that these witnesses were not beyond the
Jurisdiction Of the court, and that the afil-
ant Munday did not know the facts as
stated In his ailldavit. The court refused
| 10 have Munday called and admitted the
written testimony. Held, that Munday
should have been called and tested as to
his means OF knowledge as requested by
defendant. The admission Of the char
acter OF testimony taken In the examin-
Ing trial rests solely upon necessity, and
rules as TO its admission Is an innovation
upon the constitutional guaranty that in
all criminal cases the accused shall have
the right to be confronted
with the witnesses against him
The third paragraph Of the charge was as
follows; GAN murder committed by
poison, starving, tortue or with express
malice, or committed In the preparation,
or In the attempt at preparation Of arson,
rape, robbery or burglary, Is murder in
the hrst degree" AS charged In the in.
dctment, the crime was q murder com
ihANhth Wy AffIGOudl iuluTltt Win UlHllg
AT rethought. Held, that 1t was error to
charge upon any Phase OF the crime ex-
cept ~ defendant stood charged Ia the
indictment. charge must not be con.
strued by paragraphs, but must be con.
strued as whole, In the motion for
new trial II was shown that the prejudice
against defendant was so great that there
was not man In Clay county who
would risk his life and liberty by making
an affidavit for change OF venue, and al
though this fact was called to the atten-
ton OF the judge, the court refused a
change OF venue, assigning no reason
therefor. Held, that under these clrcum-
stances the court should have OF It's
own accord removed the cause to another
county In order that fair and impartial
trial might be given him. The district
attorney, knowing as he did that 1t was
impossible for the defendant to have q
fair and Impartial trial In Clay county,
should have moved for change OF
venue. Reversed and remanded. White,
=. j.
Joe Mechanics vs.. the State. Appeal
from Lamar county. "Malice, In It's legal
sense, means the intentional doing OF a
wrongful act toward another without
legal justification or excuse" Held, to
DO substantially correct. The charge
must DO such as would prejudice the
rights Of defendant, to cause reversal of |
Judgment. Affirmed.
John Kelly vs. the State. Appeal from |
Farrant county. In the absence OF a state |
ment OF facts and bill OF exceptions, |
ana where II Is not apparent from the |
record That gross injustice has been done,
Il cause VIII not be remanded. Affirmed |
w II MliIu
Llano county. This was an application |
for writ Of habeas corpus. The record
shows that defendant had been released
on recognlzance and was not restrained
OF his liberty. Held, that this court has
no Jurisdiction of this case and 1t is.
therefore, dismissed. Dismissed
Bill Franks vs., the State. Appeal from
Hopkins county. There was no state
ment OF facts In this case, bill OF ex-
cepuonS cannot be considered where IL
relates to matters Of evidence and there
Is no statement OF facts. Affirmed.
John Walker vs., the State. Appeal
from upsher county In this case the
Judgment did not recite that the deten
dant should be committed TO iail until
the tlne ana costs were paid. Held. that
the Judgment is imperfect as TO fine and
costs. IL should have ordered that de-
iendant be contlned In jail until the same
were fully paid. Appeal Dismissed.
SUPREME couRr-TYLER TERM, 1886.
T. A. Goddard VS.. East Texas Fire In
su ance company. Appeal from kaufman
county, This Is a suit brought by az.
pellant against the appellee To recover az
insurance policy on Il stock OF goods and
aiso on machinery. IL Is cardinal prln.
clple OF Insurance law that In order To
constitute any statement or promise OF
the Insured warranty 1t must 20 made
part oil the policy either by appearing In
the body OF the instrument, or by a proper
reference IN the policy to some other
paper In which II Is TO be found 1t rs In
the nature OF a condition precedent, and
as such must form part OF tue contract
between the parties, The policy ls the
contract, ana il outside papers are to
DC taken into IL, this must be done
In 30 clear manner as to
leave no doubt OF the intention
OF the parties. When there Is doubt as
10 the Intention ~ tho ,.s.g.. - |