Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1888-12-22
STONE In THE KIDNEY.
How It Was Removed Without the Us
of the Surgeons Knife.


Cooke. On motion for rehearing. On q
former day of the term this case was dis
missed because same had no seal across
the tie thereof. In dismissng the appeal
an agreement of counsel waving in
formalitieS in the transcript, was over
looked. The appeal will therefore be
reinstated. Gainesville is incorporated
under the general Incorporation statute of
this state, providing for the incorporation
of cities, towns and villages. Said city
enacted an ordinance as follows: eff
any person shall sell or give
away any intoxicating liq-
uors of any kind whatever,
in any house, room, or other place used
and occupied as theater, show, or
place where theatrical or dra-
matte representations are given,
by whatever name called, or any
room or other place used, run, or ope-
rated in connection with said house,
room, or other place used and occupied
as . theater, show, or place where the
atrical or dramatic representations are
given, he shall for each and every such
offense be punished by fine i'll any
amount, not less than So nor more than
$780,
Under this ordinance appellant was
duly charged with having sold intoxicat-
ing liquor in a room used in connection
with Il place TIspd rs a theater, to-wit: in
a bar-roOm useitin connection with the
Gem theater. FSe was duly convicted,
and placed i'll the hands of the city mar
shall until the fine should be paid He
sued ont . writ Of haboas corpus and was
remanded TO the custody of the marshal.
Held: There is only one question i'll this
case, and that is as to
the validity of the ordinance
under which appellant was convicted.
The ordinance in question was no doubt
enacted under authority of Art. 392, r.
s., which reads: ''The city council shall
have full power by ordinance to prevent
the sale or giving away of any intoXicat-
ing liquors i'll any house or other place
where theatrical or dramatic representa-
tons are given, and also to prevent in
tOXicating liquors of any description from
being brought into any house or place
where such representations are given I'M
der any preteXt whatever. - This is the
only provision of the statute which con-
stitutes the charter of said city, which
bears upon this particular subject, and
which grants the power to prohibit the
sale or gift OF Intoxicating liquors with
respect to theatrical or dramatic repre-
sensations. 1t will be perceived at Il
glance that said article does not confer
the power upon the city council to pro-
hibit the sale or gift of Intoxicating
liquors, except in the house or other
place where theatrical or other dramatic
rep presentations are given. The OrCi-
nance however, extends the prohibition
to any room or other place used, run or
operated in connection with such
house or place, and to this ex-
tent said ordinance is unauthOr-
lied by the charter of said
city. Its ordinances TO be valid must
conform to the laws of the state and to
its charter, unless special legislative en-
actment extends its powers beyond these.
[ 10 app. 5S4, 20 App. 2l0, 8 App. PSI.
The arrest and confinement of appellant
is without authority Of law and illegal,
and it is therefore ordered that he be
from custody and that the
city of Gainesville pay the cost of this
appeal. Wilson, j.
Albert BoOkser vs.. the State; appeal
from Tarrant. Conviction for theft of u
COW. Appellant, one Switzer, and one
one Voight were accused ofdthe theft of a
COW. When the arresting party ap-
preached Il certain house for the purpose
Of arresting the parties, some one on the
inside was heard to remark: FArrest Al
bert Booker; he,is the guilty one if any
thing is wrong AS the officers ap-
preached some one was observed leaving
the house, but it was not shown with any
degree of certainty that appellant
was present when the remark was
made. The officers entered the
house and arrested Switzer and Voight.
Held: If appellant was not present wln4-
the above quoted remarks was made, he
was not bound by them. The accused
must be present, or ut least it must ]
reasonably appear that he heard the !
statement of others before they can be
made evidence against him. This must
be shown affirmatively by the state,
though 1t may be done circumstantially.
2. The charge of the court relating to
evidence was not full.
For correct rule see Will. CT. Forms ia.
Reversed and remanded. Hurt, J..
John Johnson vs.. the STATE; appeal
from Taylor. The court gave the fol-
lowing charge which is assigned as error:
If you should find from the evidence
that prior to the shooting the deceased
tOrcIDie ana WITHOUT QeIenuanJ' 5 consent,
seized money that was defendant S prop
erty, or that defendant fairly and rea s.
onably believed was his property, and
that deceased refused to give mp such
money, and that when defendant
returned to where deceased was,
ne returned not-for the purpose of pro-
roking difficulty and infiioting injury
lpon the deceased but on the contrary,
only for the purpose of making a demand |
quietly and peaceably, and unaccompa-
lied by force of the said Gilstrap that |
money should be returned, and if with |
such purpose and intent, defendant did |
'eturn to the room and quietly demand |
he return of such money, not intending
Tor contemplating at the time that such |
demand would result in a difficulty in
which death or serious bodily injury
would result-then and in such case if de-
'endant shot and killed w. T. Gilstrap, |
t would be either murder in the second |
legree, or manslaughter, or justifabTe |
according as you should find |
he other facts of the casesunder former
Instructions of the c5nrtS' Held: The
evidence adduced caFad for charge
lpon the hypotheticaR'cases stated, but thei
acts stated if f6nnd to4be true, would |
nave made "a clear case of |
ustifiable homicide, and it was |
error in the court to tell the jury that |
Ipon such state of facts, the offense |
committed would be either murder in the
second degree, manslaughter or iustifa-
40 4 norraa- in 1--ac